Impeach Trump without a crime, unlike our criminal presidents

by Fabius Maximus 

Summary: The impeachment of Trump shows American politics at its full dysfunctionality. Here is a legal analysis of a key aspect of the articles of impeachment.

Impeachment procedure: gavel, book, and flag

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Impeachment for our foes, but not for our friends!

LBJ and Bush Jr. lied us into wars. Obama signed a treaty and implemented it without Senate approvalObama killed US citizens while they were driving – without verdicts, without trials, without warrants. Bill Clinton lied under oath to hide behavior that would have gotten any CEO immediately fired. But Trump is an enemy of the establishment, so his sins will be prosecuted severely.

Imagine how different the situation would be if Congress announced that they would no longer ignore crimes by presidents – and use their full powers to enforce the Constitution. That would be the beginning of a new America.

Impeachment of the President Normally Requires a Crime.

Samuel Estreicher and Christopher Owens.
Excerpt from an article published at Justia’s Verdict, 7 Jan 2020.

For the first time in our history, a President has been impeached by the House of Representatives for conduct not alleged to be a crime. The impeachment of Andrew Johnson and William J. Clinton, as well as the impending impeachment of Richard M. Nixon, all involved alleged crimes, while some of the additional articles of impeachment did not.

On December 18, 2019, a majority in the House approved two articles of impeachment against President Trump: one for “abuse of power” and the other for “obstruction of Congress.” Neither article states a crime or even a statutory violation. Unlike established crimes or other offenses, neither article contains required elements against which proof of violation can be ascertained. Whatever the Senate ultimately does, Trump’s impeachment is a grave moment for the union and hopefully one that does not result in substantial damage to the authority of the presidency and our civic culture.

The President’s behavior in suspending defense aid to Ukraine ostensibly in order to wrest from our ally an announcement that it would investigate the affairs of the son of a political rival should be condemned by Congress, but is it impeachable conduct? On that question, we have to be guided by uniform principle: what will be deemed sufficient for Presidents whom we dislike will also provide the standard for impeaching administrations that we favor. There needs to be some objective, nonmalleable standard of misconduct lest, especially in today’s polarized environment, impeachment becomes too easy a vehicle for the party in control of the House to be able to hobble an administration of the opposing party over partisan differences. …

The noncriminal-offense interpretation is also difficult to square with other aspects of the constitutional text. …

Wherever the Constitution refers to “crimes” or “offenses” the reference is to criminal offenses. Nowhere are such terms used to refer to noncriminal conduct or conduct that could be proscribed without a basis in a preexisting prohibition.

The foregoing suggests a textual basis for an objective standard that provides some constraint on political impulse to misuse impeachment and one that is consistent with the past practice of presidential impeachment – a minimum requirement, or at least a very strong presumption, that the President committed a crime under pre-existing federal law and perhaps certain state law dealing with garden-variety crimes.

Commission of a crime is necessary, on this view, for presidential impeachment and removal but not every crime comes within the class of “other high Crimes and Misdemeanors.” In the context of President William J. Clinton’s impeachment, there was no dispute that he had committed the federal crime of lying under oath to a grand jury. The question was whether lying about a private sexual relationship with an intern sufficiently implicated the President’s public duty to constitute a “high Crime and Misdemeanor”. …

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About the authors

Samuel Estreicher

Samuel Estreicher.

Samuel Estreicher is the Dwight D. Opperman Professor at the NYU School of Law. He is also Director of the Center for Labor and Employment Law and Co-Director of the Institute of Judicial Administration. See his page at the university website.

Christopher Owens.

Christopher Owens is a third-year law student at New York University School of Law. He has a B.A. from Brown University and an M.P.P. from the University of Michigan.

About Justia

Justia is an American website specializing in legal information retrieval. It was founded in 2003 by Tim Stanley, formerly of FindLaw, and is one of the largest online databases of legal cases.